Ruling that state shorted prison guard on pay could cost millions of dollars

Union wants decision to extend to all 4,800 guards

Madison — The state could have to pay millions of dollars to prison guards in the wake of a decision by a state equal rights official who determined that the Department of Corrections shorted an officer 35 minutes of pay a week and must pay him back wages for more than a year.

A Department of Corrections spokeswoman said Friday the agency would appeal the decision.

The department set a new policy last year that meant officers did not get paid until they showed up at their posts, even though they had to check in for a roll call before that. Paul Mertz, an officer at Redgranite Correctional Institution, filed a complaint with the state Labor Standards Bureau contending he was being shorted pay because of the policy.

The bureau this month ruled Mertz had been denied pay in violation of the federal Fair Labor Standards Act and ordered the department to pay him back pay equivalent to 35 minutes of work a week. It also ordered the department to change how it pays all Redgranite officers starting next month.

"I'm not asking them to give me something that I haven't earned or doesn't belong to me," Mertz said Friday.

Now, the union that represents the officers plans to seek back pay for officers around the state — about 4,800 in all, according to the union.

Jeffrey Glick, an equal rights officer at the Labor Standards Bureau, wrote in his July 10 ruling that Mertz is on duty and eligible for pay as soon as he checks in with a supervisor and goes through roll call, even if that is an informal process at the prison. That means he must be paid for his walk of perhaps 5 minutes through the prison to his job post, Glick wrote.

"He is, despite the absence of an actual time clock, 'on' the clock at the conclusion of roll call and fitness for duty check, and (department policies) cannot change that fact," Glick wrote.

The policy started in March 2012 and Mertz filed his complaint two months later. For those eight weeks, Mertz is owed $117. Additionally, he is owed an extra 35 minutes of pay for every week since then, Glick wrote.

Glick's order does not include the precise amount that Mertz is owed. But if he is paid at the same rate for the entire period, he should receive a total of about $1,000.

Glick also ordered that the department change its policy beginning Aug. 11 to ensure Redgranite officers are paid starting with roll call, rather than when they arrive at their posts.

Joy Staab, a spokeswoman for the Department of Corrections, said the agency would appeal the decision by a Thursday deadline. The initial appeal will be administrative, but whoever loses the appeal can then take the matter to circuit court.

Mertz, 52, has worked at the institution for more than six years. He said the policy that was rolled out last year was "like a kick in the stomach" to officers who were already upset about losing their ability to collectively bargain over most issues.

"I asked them to sit down and discuss this," Mertz said. "I didn't want to have a big deal about this and they ignored me. They stonewalled me. After two months I said, it's enough, I'm going to file a complaint."

Brian Cunningham, the interim president of the Wisconsin Association for Law Enforcement, said his union would now seek back pay for about 4,800 other officers around the state.

If the union prevails and the other officers are eligible for payments equivalent to Mertz's, the state would have to pay about $4.8 million.

"It certainly adds up," said union attorney Timothy Scheffler. "They just want to be compensated for their full day's work."

He called the department's policy a "wage-theft scheme" that denied officers pay while they were donning safety equipment, moving between security checkpoints and coordinating with their co-workers.

Mertz's victory came just before officers voted to be represented by the new Wisconsin Association for Law Enforcement and part ways with the long-established Wisconsin State Employees Union.

It was the first time state employees decided to form a new union since Gov. Scott Walker and Republican lawmakers in 2011 approved sharp limits on collective bargaining for most public workers.

Under that law, known as Act 10, the correctional officers union can bargain for raises — up to the rate of inflation — but nothing else.

Act 10 makes addressing the dispute over unpaid wages more difficult, said Scheffler.

"The place you have to go is court instead of sitting at the bargaining table," he said.

Scheffler added he hoped to find a way to tell the Department of Corrections the union would like it to change its policy without such communication being considered labor negotiations. That could help avoid litigation, he said.

While a vote tally Thursday showed officers approved representation by the new union, the rival union or the state could still challenge those results. And even if the new union receives official state recognition, it will have to survive another vote to maintain that recognition under Act 10.

In that election — which could come as soon as November — the union would have to receive support from 51% of all of those eligible to be in the union, not just those voting. Cunningham, the interim president, acknowledged that vote would be a "relatively tough climb" but said he hoped the union's work on securing back wages would persuade officers of the importance of sticking with the new union.

Marty Beil, executive director of the Wisconsin State Employees Union, decried the decision of the officers to split off and form a separate union, saying in a statement they had "fallen prey to divide-and-conquer politics."

"We are disappointed that many security and public safety workers were so disillusioned that they chose to essentially go it alone instead of standing with their brothers and sisters in other professions," his statement said.

About Patrick Marley

Patrick Marley covers state government and state politics. He is the author, with Journal Sentinel reporter Jason Stein, of "More Than They Bargained For: Scott Walker, Unions and the Fight for Wisconsin.”